Andrew Coyne: Exactly why do we need a Senate ?

If the Senate were so 'always respectful' of their respective roles, it’s curious Harder should feel the need to spend 51 pages explaining what those roles are

enator Peter Harder waits in the Senate lobby, Tuesday, November 15, 2016 in Ottawa. In Harder’s estimation, the past two-and-a-bit years have been something of a golden age of Senate legitimacy, a period in which it has rebuilt its credibility after what he plainly views as the dark age of partisanship that preceded it: a dark age that precisely coincides with the period of Conservative government.Adrian Wyld / The Canadian Press

More than two years after the Trudeau government introduced its system of “independent, merit-based” appointments to the Senate, transforming — so it was said — the Other Place from a house of patronage and partisanship to a house of virtue, the government’s “representative” in the Senate has given some thought to how it will all work.

In a 51-page discussion paper, Peter Harder offers his views on what role the Senate should play, as one of the last remaining appointed legislatures among the world’s democracies — and the most powerful, on paper — particularly in light of its changed circumstances. It makes for a fascinating, not to say hallucinatory read.

In Harder’s estimation, the past two-and-a-bit years have been something of a golden age of Senate legitimacy, a period in which it has rebuilt its credibility after what he plainly views as the dark age of partisanship that preceded it: a dark age that precisely coincides with the period of Conservative government.

The expense scandals, the epic confusion that followed the government’s half-considered reforms, the repeated episodes of brinksmanship as the newly envirtued Senate threatened to defeat this or that bill, these rate barely a mention, in Harder’s account, beside the Senate’s “robust bicameralism,” its “positive track record” and contributions that have been “effective, policy-oriented and always respectful of the role of the representative House of Commons.”

Ah yes. About that: if the Senate were so “always respectful” of their respective roles, it’s curious Harder should feel the need to spend 51 pages explaining what those roles are. But then, that is because it is so exquisitely complicated, so delicately subtle, requiring such a delicate balance.

Minister of Finance Bill Morneau speaks with Sen. Peter Harder, government representative in the Senate, before heading into the House of Commons on Parliament Hill during a marathon voting session in Ottawa on Friday, March 23, 2018.Justin Tang /
The Canadian Press

On the one hand, there are those who believe a clutch of appointees, even if they sit together in the same room, should have no power to defeat legislation passed by the elected members of the House of Commons, a position he admits has the support of at least one previous government, plus “a number of pundits, academics and former senators,” not to say much of the public. These are the critics who worry that a less partisan, more “legitimate” Senate will increasingly challenge the authority of the Commons.

On the other hand, there are those who believe the Senate should be both partisan and powerful, and who fret that if it is not the former it will not be the latter, but rather a largely impotent “advisory committee” — a position he attributes to exactly one person, the former Conservative leader in the Senate, Claude Carignan.

And there, in the sensible middle ground between these supposed poles, stands Harder, advocate for what he describes as a “golden mean,” a “fragile balance,” and so on. What is this balance to be struck? In Harder’s telling, the Senate should defeat some bills passed by the other House — the one with the democratic mandate from the people — but not others. Or rather, it should generally refrain from defeating bills, with occasional exceptions.

The Senate, says Harder, should not be a “rubber stamp,” but neither should it be “a rival to the elected representatives of Canadians.” It should retain the power to defeat legislation, but should use it only in “rare and exceptional circumstances.”

And what would those circumstances be? What sorts of criteria would guide Senators in their application of this surpassingly vague rule? Harder is never quite clear: “each case must be assessed on its own merits.” Even where describing the sorts of legislation on which the Senate should generally defer — money bills, confidence matters, campaign promises — he is forever inserting qualifiers: “customarily,” “where appropriate” etc.

Sen. Peter Harder, government representative in the Senate, left, speaks with Sen. Larry Smith, leader of the opposition in the Senate, before a vote on Bill C-45, the Cannabis Act, in the Senate chamber on Parliament Hill in Ottawa on Thursday, March 22, 2018. The Senate, says Harder, should not be a ârubber stamp,â but neither should it be âa rival to the elected representatives of Canadians.â It should retain the power to defeat legislation, but should use it only in ârare and exceptional circumstances.âJustin Tang /
The Canadian Press

But he knows it when he sees it. And where he sees it is … just about always — certainly since the current government was elected. Have there been cases where the Senate came perilously close to crossing the line, such as when a Senate committee took it upon itself to rewrite the government’s signature tax bill, or the near-defeat of the assisted suicide bill, or the pot legalization bill? Sure: but in the end the Senate did not actually kill any of them, did it?

Likewise through history: since 1960, “only” four government bills have been defeated outright. But this is misleading. For one thing, it doesn’t count the innumerable bills, especially private member’s bills, that never came to a vote, but died with the end of each session: the so-called “pocket veto.” And while a showdown between the two houses has often been avoided by the Commons accepting Senate amendments, Harder admits this consent is often procured only by the threat of a veto.

One gets the impression that Harder’s definition of when it is “appropriate” for the Senate to defy the Commons — those “inherently bad or fundamentally ill-considered” bills or “egregious deprivations of basic rights” from which only the Red Chamber can save us — has a lot to do with whether he agrees with the legislation or not. Thus the defeat of the Mulroney government’s abortion bill, on a tie vote of the Senate, is cited approvingly — though the Supreme Court, in striking down the old bill, had practically begged Parliament to pass a new one.

Indeed, if it’s a “safety valve” we need, we already have at least two: the Supreme Court, and (in extremis) the Crown. Why do we also need the Senate? Or rather, why should the Senate have an absolute veto? Perhaps the Senate has a useful role to play in reviewing legislation, proposing amendments and such. But why should it not be limited to a suspensive veto — allowing it to delay, but not kill a bill — as many have proposed?

Groping for examples, Harder conjures up fantastic scenarios: internment of racial minorities, say, as happened in the Second World War. But we have a Charter now, as we did not then. We do not also need a council of virtue.

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